Beach access law could sap FEMA funding

Monday

A new state law that could keep the public off private beaches could also hurt those private beaches -- it could mean fewer dollars for dune restoration following hurricanes.

BUNNELL — Flagler County officials are moving forward with a plan to draft a “customary use ordinance” to preserve public access to privately owned beach property in the county.

County Attorney Al Hadeed addressed the potential consequences of ignoring a new private property law, which was signed March 23 by Gov. Rick Scott and takes effect July 1, during a County Commission workshop Monday.

Florida HB 631 allows coastal land owners to deny public access to the portions of the beach they own that lie between the mean high-water line and the dunes.

“It’s a very dramatic change to what historically has been the case, where you have all beaches open to the public,” Mike Gill, who owns a beachfront home in Hammock Dunes, said when asked about Florida's new law, which is scheduled to take effect July 1. “For Florida to pass a law that has the implications that I think this one has, I think the communities need to understand why that was deemed to be an important thing to do. I don’t get it right now.”

Steven Davis, who owns a beachfront home in Painters Hill just north of Beverly Beach, called the new law "stupid."

“I think it’s a stupid, awful law,” he said.

Davis lives in an unincorporated area where county crews are building seawalls to protect against erosion as opposed to dumping sand and refortifying dunes. He said he has no intention of doing anything that might restrict public access to the beach beyond the seawall.

“I can’t imagine what the Legislature is thinking about,” Davis said during an interview Monday. “I lived in Hawaii for years; all the beaches are public. It didn’t matter how many millions of dollars you had, the beach in front of your house was public. Beaches ought to be public in Florida. Period.”

The right of public access to privately owned beaches is based on a doctrine known as customary use. This is the commonly held practice of tempering property rights where there has been long-term, reasonable, undisputed and uninterrupted use of privately owned land by the public.

Restriction of the public’s ability to hike, bike, fish and picnic on these sands has received most of the attention since the law’s passage. But in Flagler County, the law’s impact could reach beyond that, possibly causing problems even for the property owners.

That’s because it would affect the county’s ability to get Federal Emergency Management Agency funding to restore and protect beaches — including those beaches that are privately owned.

In fact, county officials had planned to compose a customary use ordinance prior to the Legislature’s passage of HB 631.

“After the hurricane damage from Matthew, we learned that not having something in place that reflected our legal responsibility for the dunes would deprive us of being able to receive FEMA funding,” Hadeed explained.

To grant the level of funding Flagler County sought following recent storms, FEMA officials wanted to see the county’s practices codified in an ordinance. Lacking such an ordinance, the county has had to make do with a reduced level of FEMA funding. This has placed greater stress on the county’s taxpayer-supported resources. It has also heightened the need to seek special appropriations from the Legislature.

But even then, the scope of the county’s ability to prepare for the next hurricane has been curtailed.

“We’re only going to be able to build dune berms, not a full-sized dune,” Hadeed said. “If we had more dollars, we could have done more.”

The county’s plans to pass the needed ordinance were accelerated after the Legislature introduced HB 631 because it sets a deadline after which passing the local ordinance becomes extremely complicated.

Currently, a county can pass a customary use ordinance with little encumbrance. The only complication would be a possible challenge by a member of the public.

After July 1, that changes. The county will no longer be able to simply pass an ordinance. Instead, the issue becomes a judicial process.

“What they have to do is, they send certified mail notice to all the property owners — as well as public notices in the newspapers — that they are going to seek to establish a customary use declaration,” said Hadeed. “There is a set public hearing for them to do that at which individuals can come and voice their views. Then, for those that disagree with the declaration, there’s a mandatory court process, which brings in all the people who do not want that declaration.”

This sets up a multiparty lawsuit of property owners against the local government, which must initiate the suit.

The county’s proposed customary use ordinance is scheduled to come before the commission at two hearings coinciding with its regular meetings. The public will have an opportunity to speak at each. The meetings are scheduled for 9 a.m. May 7 and 5 p.m. May 21.

— Staff Writer Matt Bruce contributed to this report.

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